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mean a will void in law, for want of some requisite formality, though no doubt be entertained of its meaning or authenticity: as suppose a man make his will, devising his freehold estate to his sister's son, and the will be attested by two only, instead of three subscribing witnesses ; would the brother's son, who is heir at law to the testator, be bound in conscience to resign his claim to the estate, out of deference to his uncle's intention? Or, on the contrary, would not the devisee under the will be bound, upon discovery of this flaw in it, to surrender the estate, fuppose he had gained possession of it, to the heir at law ? · Generally speaking, the heir at law is not bound by the intention of the testator. For the intention can signify nothing, unless the person intending have a right to govern the descent of the estate. That is the first question. Now this right the testator can only derive from the law of the land ; but the law confers the right upon certain conditions, with which conditions he has not complied. Therefore, the testator can lay no claim to the power which he pretends to exercise, as he hath not entitied himself to the benefit of that law, by virtue of which alone the estate ought to attend his disposal. Consequently, the
devisee devisee under the will, who, by concealing this flaw in it, keeps poffeffion of the estate, is in the situation of any other person, who avails himself of his neighbour's ignorance to detain from him his property. The will is so much waste paper, from the defect of right in the person who made it. Nor is this catching at an expression of law to pervert the substantial design of it, for I apprehend it to be the deliberate mind of the legislature, that no will should take effect upon real estates, unless authenticated in the precise manner which the statute describes. Had testamentary dispositions been founded in any natural right, independent of positive constitutions, I should have thought differently of this question. For then I should have considered the law, rather as refusing its assistance to enforce the right of the devisee, than as extinguishing, or working any alteration in the right itself.
And after all, I should choose to propose a case, where no consideration of pity to distress, of duty to a parent, or of gratitude to a benefactor, interfered with the general rule of justice.
The regard due to kindred in the disposal of our fortune (except the case of lineal kindred, which is different arises, either from the respect we owe to the presumed intention of the ancestor VOL. I.
· from whom we received our fortunes, or from the expectations, which we have encouraged. The intention of the ancestor is presumed with greater certainty, as well as entitled to more respect, the fewer degrees he is removed from us, which makes the difference in the different degrees of kindred. It may be presumed to be a father's intention and desire, that the inheritance which he leaves, after it has served the turn and generation of one son, should remain a provision for the families of his other children, equally related and dear to him as the eldest. Whoever therefore, without cause, gives away his patrimony from his brother's or sister's family, is guilty not so much of an injury to them, as of ingratitude to his parent. The deference due from the possessor of a fortune to the presumed desire of his ancestor will also vary with this circumstance, whether the ancestor earned the fortune by his personal industry, acquired it by accidental successes, or only transmitted the inheritance which he received.
Where a man's fortune is acquired by himfelf, and he has done nothing to excite expectation, but rather has refrained from those particular attentions which tend to cherish expectation, he is perfectly disengaged from the force of the above reasons, and at liberty to leave his fortune to his friends, to charitable or public purposes, or to whom he will ; the same blood, proximity of blood, and the like, are merely modes of speech, implying nothing real, nor any obligation of themselves.
There is always, however, a reason for providing for our poor relations, in preference to others who may be equally necessitous, which is, that if we do not, no body else will ; mankind. by an established consent, leaving the reduced branches of good families to the bounty of their wealthy alliances.
The not making a will is a very culpable omiffion, where it is attended with the following effects : where it leaves daughters or younger children at the mercy of the eldest son ; where it aistributes a personal fortune equally amongst the children, although there be no equality in their exigencies or situations; where it leaves an opening for litigation; or lastly, and principally, where it defrauds creditors ; for by a defect in our laws, which has been long and strangely overlooked, real estates are not subject to the payment of debts by simple contract, unless made so by will; although credit is in fact generally given to the possession of such estates. He therefore, who neglects to make the necessary appointments for the payment of his debts, as far as his effects extend, sins, as it has been justly said, in his grave ; and, if he omits this on purpose to defeat the demands of his creditors, he dies with a deliberate fraud in his heart.
Anciently, when any one died without a will, the bishop of the diocese took poffeffion of his personal fortune, in order to dispose of it for the benefit of his soul, that is, to pious or charitable uses. It became necessary therefore, that the bishop should be fatisfied of the authenticity of the will, when there was any, before he resigned the right which he had to take possession of the dead man's fortune, in case of intestacy. In this way, wills, and controversies relating to wills, came within the cognizance of ecclefiaftical courts ; under the jurisdiction of which, wills of personals (the only wills that were made formerly) still continue, though, in truth, no more now-a-days connected with religion, than any other instruments of conveyance. This is a peculiarity in the English law.
Succession to inteftates must be regulated by positive rules of law, there being no principle of natural justice whereby to ascertain the proportion